TMI Blog2020 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made against the assessee and, therefore, the additions made were set aside - No fact could be placed by the State which can persuade this Court to take a view different from the view recorded by the Tribunal and, therefore, this question is answered in favour of the assessee as against the the respondent. Whether the Learned Trade Tribunal was justified in waiving of the interest which was liable under Section 8(1) on the admitted sale turn over like admitted tax? - HELD THAT:- In the present case, Form 3 Kha was not valid for the assessment year in question and, therefore, the tax was rightly levied upon the sale transaction - It is not in dispute in the present case that the assessee himself mentioned certificate in their accounts the turnover to claim benefit of Section 3 Kha, which according to the provisions of the Act were on the face of it not valid and this did not require any deep examination of the issue. Whether the judgment and order passed by the Tribunal is justified ignoring the facts set out in the assessment order which was passed strictly in accordance facts available on records as also the provisions of the Trade Tax Rules - HELD THAT:- It is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Department with regard to the business place of M/s Harsingar Gutaka Pvt. Ltd. and M/s Gopal Grinding Industries on 4th and 5th July, 2001 and on the inspection it was found that the owner of the firm M/s Mahesh Co. (The respondent/Firm) is also the Director of M/s Harshringar Gutka and the respondent/firm supplied the raw material, betel nuts, catechu etc. to M/s Harshringar Gutka Pvt. Ltd. The stock of the respondent/firm was in Satnam Cold Storage and on on inspection 200 bags of betel nuts was found related with M/s Mahesh and Co. 5. The grinding works of the goods sent by M/s Mahesh Co. was being done by M/s Gopal Grinding Industries and in the said Gopal Grinding Industries difference in stock was found. On the basis of material collected during aforesaid inspection the assessing authority rejected the books of accounts and determined tax of ₹ 1,18,27,701.00 on the sale turnover of ₹ 15,20,000/- vide assessment order dated 4.2.2006. While passing the order the assessing authority recorded that there was huge difference in the stock by the respondent and further that Gopal Grinding Industries did not show any purchase or sale itself but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of conjectures and surmises the assessment been done and the revisionist has been assessed to tax with regard to goods which were dispatched form Gopal Grinding Industries 10. The second issue which was considered by the Tribunal was with regard to the interests levied on the tax while rejecting form 3 B. In this regard the Tribunal observed that the respondent had submitted Form 3 B dated 5th March, 2004 while the transactions were conducted for the assessment year 2000-2001. The said form 3 B being beyond two years were not liable to be accepted and, therefore, benefit of Form 3B was not admissible to the respondent. 11. They further held that according to Section 8 the interest amount could not be levied upon the respondent as disputed amount would amount admitted tax and the said amount not being admitted tax no interest was liable to be paid according to Explanation of Section 8 of U.P. Trade Tax Act. 1948. 12. To deal with the question with regard to addition made by the assessing authority it will be relevant to consider the reasons stated by the assessing authority in his order dated 4.2.2006. It has been observed that information was received by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority came to the conclusion that opposite parties cannot be held to be liable for evasion of taxes and also that the amount found in cash book could not related to the transactions conducted by the opposite parties, therefore, set aside the order of assessing authority in this regard. 18. The first appellate authority concurred with the findings of the assessing authority and rejected the findings of respondents. Considering the aforesaid facts the Tribunal in the second appeal concluded that books of accounts of the respondent has been rejected without any reasonable basis. During inquiry no adverse material was found in the premises of the respondent. Just because certain material dispatched from Gopal Grinding Industries to Harshringar Gutka Pvt. was not tracable in the said premises adverse inference has been recorded without there being any material to support such findings. Only reasons for rejecting the books of accounts is the cash entry for 12,20,000/- for which explanation has been given by the respondent that the Tribunal in the aforesaid circumstances were satisfied with the explanation given by the respondent, therefore, decided the second appeal in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal and, therefore, this question is answered in favour of the assessee as against the the respondent. 24. The second question relates to the additions made by the Assessing Officer while rejecting Form 3 Kha as from 3.1.1991 to 5.3.2004 which are not valid for the assessment year 2000-01. The Assessing Officer has levied interest payable on the admitted sale turnover as if it was admitted tax. The Tribunal while allowing the appeal of the assessee has upheld the imposition of tax but waived off all the interest imposed on the said tax. It is the case of the assessee that the turnover in the return was not admitted and, therefore, interest under Section 8 could not have been levied. 25. In the present case, Form 3 Kha was not valid for the assessment year in question and, therefore, the tax was rightly levied upon the sale transaction. In the case of M/s. Hindustan Aluminium Corporation Ltd. Vs. Commissioner of Sales Tax and Commissioner of Sales Tax v. M/s. Hindustan Aluminium Corporation, reported in 1996 U.P.T.C. 795 the word tax admittedly payable has been considered in detail, which is quoted hereinbelow:- As regards the last contention of the learned Stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee acted mala fide in not depositing the tax at the rate 7 per cent. The demand of interest was not justified.' Their Lordships observed: We are unable to see any relevance of the mala fides in the case, Section 8 (1) does not say that the non-payment should be mala fide. This is also not a case where the rate of tax applicable was in dispute or disputed by the dealers. This is simply a case where the dealer calculated the tax at an inapplicable rate. He did not and could not plead ignorance of the change in rate of tax selected two years earlier. In the circumstances, the concept of such mala fide was not relevant in the context. 26. Section 8 of the U.P. Trade Tax Act is quoted hereinbelow: 8. Payment and recovery of tax: (1) The tax admittedly payable shall be deposited within the time prescribed or by the thirty-first day of August, 1975, whichever is later failing which simple interest at the rate of 2 per cent per mensem shall become due and be payable on the unpaid amount with effect from the day immediately following the last date prescribed or till the date of payment of such amount, whichever is later and nothing contained in Section 7 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed form which is form 3-B. 29. The Rule 25-B is the relevant rule which prescribes the document 3-B the requisite form to be furnished by such manufacturer to its selling dealer to avail the benefit of concessional rate of tax or tax at nil rate, as the case may be. Rule 25-B is reproduced hereinbelow:- Rule 25- B. Authority from which Declaration Forms may be obtained; use custody and maintenance of records of such Forms and matters incidental thereto. (1) Where a dealer holding a recognition certificate purchases any goods referred to in clause (b) of sub-section (1) of section 4-B, for use as raw material for the purpose of manufacture of any notified goods, he shall, if he wishes to avail of the concession referred to therein, furnish to the selling dealer a certificate in Form III-B (hereinafter called a Declaration Form ). ..... (3) If the trade tax officer is satisfied that the demand that for blank declaration Form referred in sub-rule (1) is genuine and reasonable, he may issue such number of forms a he deems fit...... A form issued by the Trade Tax Officer in a financial year shall be valid for the transaction of purchase or sale made d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax is payable under the Act, the interest would be payable in terms of sub-section (1) of section 8 of the Act and not in terms of sub-section (1B) of Section 8 of the Act. 17. This court in the case of Commissioner of Sales Tax v. Qureshi Crucible Centre, 1993 Supp (3) SCC 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8(1) from the date when the tax became due and payable. In such a case, the dealer cannot claim that he is liable only from the date of the assessment order fixing the correct rate of tax. Similarly, in case where the dealer has taken a chance and it has been held that the tax is payable under Act, the same becomes payable from the date when it was due. 33. On applying aforesaid principles to the facts of the present case, the Tribunal has wrongly granted relief to the assessee by deleting interest. After rejection of Form 3-b the amount of interest levied on admitted tax was liable to be paid by the assessee and the order of the Assessing Officer in this regard is in conformity with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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